One of the more heart wrenching consults I commonly encounter is when a primary caretaker mother who agreed to shared physical custody has fallen in love and married, or plans to marry, a man who is required to live elsewhere. [1] These mothers assume they will be allowed to alter the shared custody arrangement and move the children to be with their husband. Often they come to me after they realize the father is resistant. Frequently they have already had a temporary hearing in which the court has denied their relocation request. They look to me to help resolve what they perceive as a crisis: they can live with their husband or their children but not both. There is rarely a satisfying solution.

When a father has been exercising shared custody (which I would define as having the children from four to seven days during the average two-week period) it is extremely hard for mothers to obtain permission to relocate with the children absent the father’s consent, with it becoming harder the more time the father has. When the father has been exercising more than 50% time with the children it is highly unlikely the court will allow the relocation.

The reason is that such relocations alter the shared custody arrangement and thus require the parent seeking to relocate with the children to win two distinct and legally difficult issues: they must first prove there has been a change of circumstance sufficient to alter the shared custody arrangement and give them primary custody and then they must additionally prove that the relocation is in the minor children’s best interests. The mere fact that the stepfather lives elsewhere is insufficient to meet either of these burdens. Typically unless the mother can show that father’s extensive visitation has been problematic or demonstrate the children are much more closely bonded to her, the courts will deny the relocation request.

Telling a mother that the family court will probably force her to chose between living with her husband or living with her children is one of the most upsetting things I ever have to tell the person sitting across my desk. This is even more upsetting to mothers who had historically been the primary caretaker and had previously agreed to shared custody out of a desire to be generous or accommodating to the father.

The takeaway from this knowledge is that when one represents a primary caretaker mother in an initial custody determination in which a shared physical custody arrangement is being considered, one should warn the mother of the complications that will develop if she begins a serious relationship with a man who does not live locally or who has employment that subjects him to being moved. It’s better that the client understands this when she agrees to shared physical custody than that she learns this only after the court has made her chose between her husband and her kids.

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[1] While this factual scenario can also apply to fathers who marry women who work elsewhere, my experience is that few custodial fathers relocate merely to accommodate their wives’ employment if this will create resistance from the children’s mother.